ISIS PHARMACEUTICALS INC
ANTISENSE THERAPEUTICS LTD
STOCK PURCHASE AGREEMENT
XXXXXX XXXXXXX
Lawyers
Rialto Towers
000 Xxxxxxx Xxxxxx
XXXXXXXXX XXX 0000
DX 000 Xxxxxxxxx
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
JJS
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") between ISIS PHARMACEUTICALS,
INC. of 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, XXX ("ISIS") and ANTISENSE
THERAPEUTICS LTD., ACN 000 000 000 of Xxxxx 0, 00 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 0000, XXXXXXXXX ("ATL") is entered into and made effective in
accordance with the provisions of the agreement entitled "Master Agreement"
between ATL and ISIS, dated October 30, 2001. The effective date of this
Stock Purchase Agreement will be the date upon which conditions 1 and 3 in
the Master Agreement have been met (the "Effective Date"). If the Effective
Date has not occurred by March 28, 2002, this Agreement will be null and void
and will not become effective.
RECITALS
A. The parties intend to enter into a Collaboration and Licence
Agreement dated 30 October 2001 ('COLLABORATION AND LICENCE
AGREEMENT').
B. Under that Agreement Isis will licence intellectual property to ATL
on the terms and conditions of the Collaboration and Licence
Agreement.
C. ATL has agreed to issue and grant to Isis, and Isis has agreed to
subscribe for, shares and options in the capital of ATL on the terms
and conditions of this Stock Purchase Agreement.
AGREEMENT
1. DEFINITIONS
In this agreement, unless the contrary intention appears:
'ASX' means Australian Stock Exchange Limited ACN 008 624 691.
'ASX LISTING' means admission of ATL to the ASX Official List and
quotation by the ASX of shares in ATL.
'ASX LISTING RULES' means the listing rules of the ASX as amended
from time to time.
'ATL SHARES' means fully paid ordinary shares in ATL.
'BUSINESS DAY' means the day in which banks (as defined under the
Banking Xxx 0000 (Cth)) are open for general banking business in
Victoria, Australia excluding Saturdays and Sundays.
'CIRCADIAN' means Circadian Technologies Limited ACN 006 340 567 of
Xxxxx 0, 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 0000, Xxxxxxxxx.
'COMPLETION' means completion of the subscription for, and issue of,
the ATL Shares in accordance with clause 6.
'COMPLETION DATE' means the date 2 Business Days after the ASX has
approved of the ASX Listing of ATL and ATL has satisfied all
conditions attaching to such approval, or such other date as the
parties may agree in writing.
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'XXXXXXX INSTITUTE' means the Xxxxxxx Childrens Research Institute of
Parkville, Victoria, Australia.
'XXXXXXX INTERESTS' means the Xxxxxxx Institute or other party
nominated by the Xxxxxxx Institute.
'OPTION' means an option to acquire by way of issue 1 ATL Share on
the following terms:
(a) the exercise price for each option is 20 Australian cents per
share;
(b) the exercise period will be the period commencing on the date
of grant of the option and ending on 30 November 2006;
(c) such other terms as are set out in schedule 1 or as otherwise
required by ASX.
'RECORD DATE' means a date proximate to the date of ASX listing to be
determined in accordance with ASX requirements.
'RESTRICTION AGREEMENT' means the restriction agreement set out in
Appendix 9A to the ASX Listing Rules as applies at Completion, the
form of which (as at 3 September 2001) is set out in schedule 2.
'POLYCHIP' means Polychip Pharmaceuticals Pty Ltd ACN 006 455 456 of
Xxxxx 0, 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 0000, Xxxxxxxxx, a
wholly owned subsidiary of Circadian.
'SUBSCRIPTION SHARES' means 30 million fully paid ordinary shares in
ATL.
'SYNGENE' means Syngene Ltd ACN 006 161 753 of Xxxxx 0, 00 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx, 0000, Xxxxxxxxx, a company in which
Polychip has a minority shareholding.
2. CONDITION
2.1 CONDITION
The provisions of clauses 3, 4 and 6 have no effect and the issue of
the ATL Shares, and grant of the Options by ATL to Isis as
contemplated by clause 3 of this agreement shall not occur, unless
and until the following condition is satisfied (the 'Condition'):
ASX approves an ASX Listing of ATL and ATL satisfies all
conditions attaching to such approval (other than the issue of
shares and grant of options to Isis, as contemplated by clause
3), in each case on or before 26 March 2002 or such later date
as the parties may agree in writing.
2.2 WAIVER OF CONDITION
The Condition may not be waived except by a waiver in writing signed
by each party and will be effective only to the extent specifically
set out in that waiver.
2.3 CONDUCT OF THE PARTIES
Each party must use its reasonable efforts within its own capacity to
ensure that the Condition is satisfied.
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2.4 FAILURE OF CONDITION
(a) Either party may terminate this agreement by giving notice in
writing to the other party at any time before Completion if the
Condition is not satisfied, or waived by each party, before 5.00
pm on the Business Day immediately before the date set out in
the Condition or such later date as may be agreed in writing by
the parties.
3. ISSUE OF SHARES AND GRANT OF OPTIONS
3.1 AGREEMENT TO ISSUE SHARES AND GRANT OPTIONS
On and subject to the terms and conditions of this agreement:
(a) Isis agrees to subscribe for, and ATL agrees to issue to
Isis, the Subscription Shares; and
(b) ATL agrees to grant to Isis 20 million Options.
3.2 ACKNOWLEDGMENT
The parties acknowledge that:
(a) ATL will be capitalised by various shareholders prior to the ASX
Listing of ATL on the basis set out below:
----------------------------------------------------------------
ENTITY NUMBER OF ATL SHARES
----------------------------------------------------------------
Polychip 54.375 million
----------------------------------------------------------------
Syngene 54.375 million
----------------------------------------------------------------
Xxxxxxx Interests 11.250 million
----------------------------------------------------------------
Total 120 million
----------------------------------------------------------------
(b) It is anticipated that, after the ASX Listing of ATL, ATL
will:
(i) be capitalised as to approximately 190 million to
215 million ATL Shares; and
(ii) have granted between 105 million Options and 117.5
million Options.
(c) It is intended that ATL Shares will be offered to the public for
a subscription price of 20 Australian cents per ATL Share, with
a free Option attaching to each ATL Share at the rate of 1
Option for every 2 ATL Shares issued.
(d) It is intended that, after the ASX Listing of ATL, the ATL
Shares issued and Options granted by ATL will be as follows:
----------------------------------------------------------------
PARTY NUMBER OF ATL SHARES NUMBER OF OPTIONS
----------------------------------------------------------------
Polychip 54.375 million
----------------------------------------------------------------
Syngene 54.375 million
----------------------------------------------------------------
Xxxxxxx Interests 11.250 million
----------------------------------------------------------------
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----------------------------------------------------------------
Isis 30 million 20 million
----------------------------------------------------------------
Public Subscribers 40 to 65 million 20 to 32.5 million
Circadian 42 million
Shareholders*
----------------------------------------------------------------
Syngene Shareholders* 23 million
----------------------------------------------------------------
TOTAL** 190 TO 215 MILLION 105 TO 117.5 MILLION**
----------------------------------------------------------------
*The number of Options to be granted to Circadian Shareholders
and Syngene Shareholders respectively are approximate only, based
on the issued capital of each of Circadian and Syngene as at the
Record Date. It is intended that those shareholders will be
issued Options on the basis of 1 Option for every share held by
the shareholders in Circadian and Syngene (as the case may be) on
payment to ATL of 1 cent per Option. The Isis and Public Options
will be free.
**This total will be increased by any options granted pursuant to
the share option scheme described in clause 3.2(e).
(e) ATL intends putting in place a share option scheme in which
senior originators inventors, employees and directors will
participate. These options will have the same terms and
conditions as the Options to be granted to the public under
the prospectus, except it is intended there will be
additional vesting conditions which will provide for gradual
vesting for up to 5 years, restrictions on transfer and
conditions on continued employment or involvement in ATL's
projects. It is currently intended that the following
entitlements will be granted under that scheme:
-----------------------------------------------------------------
INDIVIDUAL NUMBER OF OPTIONS
-----------------------------------------------------------------
Xxxxxxx Xxxxxx (Non-executive Director) 2 million
-----------------------------------------------------------------
Xxxxx Xxxxxx (Managing Director and 2 million
Originator)
-----------------------------------------------------------------
Xxxxxx Xxxxxx (Research Director (non- 1.5 million
Board position), inventor and Originator)
-----------------------------------------------------------------
Xxxxxxxxxxx Xxxxxxx (inventor) 2 million
-----------------------------------------------------------------
Xxxxxx Xxxxxxx (inventor) 2 million
-----------------------------------------------------------------
other Directors of ATL to be determined by ATL
-----------------------------------------------------------------
other Executives/Scientists to be determined by ATL
----------------------------------------------------------------
4. CONSIDERATION
The parties acknowledge and agree that the consideration to be
provided by Isis to ATL for the Subscription Shares and Options to be
granted under clause 3 is the grant of the licences and provisions of
the other services provided by Isis pursuant to the Collaboration and
Licence Agreement.
5. ASX RESTRICTION AGREEMENT
5.1 The parties acknowledge that the ATL Shares and Options to be held by
Polychip, Syngene, Xxxxxxx Interests and Isis are likely to be
regarded by the ASX as restricted securities for the purposes of the
Chapter 9 of the ASX Listing Rules, to be placed in
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escrow for a period of 2 years. Isis must sign a Restriction
Agreement (and Isis must procure any controller (as that term is
defined in the ASX Listing Rules) to sign a Restriction Agreement) in
the form required by ASX and forward such documents (together with
any other documents required under that agreement) to ATL within 2
Business Days of being requested in writing by ATL to do so for the
purposes of facilitating the proposed ASX Listing of ATL.
6. COMPLETION
6.1 TIME AND PLACE
Completion will take place on the Completion Date at the office of
Xxxxxx Xxxxxxx, Lawyers at Xxxxx 00, Xxxxxx Xxxxxx, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx or another place agreed by the
parties.
6.2 SIMULTANEOUS ACTIONS AT COMPLETION
All actions at Completion will be treated as taking place
simultaneously and no delivery will be regarded as having been made
until all deliveries due to be made by Completion have been made.
6.3 OBLIGATIONS OF ISIS
At or before Completion, Isis must do all of the things listed below:
(a) provide to ATL a Restriction Agreement duly signed by Isis and
any controller of Isis (as defined by the ASX Listing Rules) in
accordance with clause 5;
(b) provide to ATL all such other documents as are required
pursuant to the terms of the Restriction Agreement;
(c) provide to ATL an application for the ATL Shares to be
subscribed for by Isis pursuant to clause 3.1;
(d) provide to ATL an application for Options to be granted to
Isis pursuant to clause 3.1.
6.4 OBLIGATIONS OF ATL
At Completion, ATL must, subject to compliance by Isis with the
provisions of clause 6.3, issue to Isis the Subscription Shares and the
Options to be granted pursuant to clause 3.1.
6.5 WAIVER
If any of the obligations set out in clauses 6.3 and 6.4 above are
not complied with in any respect on the date set for Completion, the
other party may in its absolute discretion:
(a) waiver compliance with that provision;
(b) defer Completion to a date not more than 5 Business Days
after the date set for Completion;
(c) proceed to Completion as far as its practicable (without
prejudice to any of its rights under this agreement); or
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(d) terminate this agreement by notice in writing to the other
party.
6.6 ACCRUED RIGHTS
Termination of this agreement does not affect any accrued rights or
remedies of a party.
7. ASSIGNMENT
A party may not assign any of its rights under this agreement without
the consent of the other parties.
8. WAIVER
8.1 WAIVER
A provision of or right under this agreement may not be waived except
by a waiver in writing signed by the party granting the waiver, and
will be effective only to the extent specifically set out in that
waiver.
8.2 RIGHTS EXERCISABLE
The failure of a party at any time to require performance of any
obligation under this agreement is not a waiver of that party's right:
(a) to insist on performance of, or claim damages for breach of,
that obligation unless that party acknowledges in writing that
the failure is a waiver; and
(b) at any other time to require performance of that or any other
obligation under this agreement.
9. NOTICES
9.1 SERVICE OF NOTICES
A party giving or serving notice or notifying under this agreement
must do so in writing:
(a) directed to the recipient's address specified in this
clause, as varied by any notice; and
(b) hand delivered or sent by prepaid post or facsimile to that
address.
The parties' addresses and facsimile numbers are:
Isis Pharmaceuticals, Inc
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Facsimile No: x0 000 000 0000
Antisense Therapeutics Ltd
Xxxxx 0, 00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 0000
Xxxxxxxxx
Facsimile No: x00 0 0000 0000
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9.2 DEEMED RECEIPT
A notice given in accordance with clause 9.1 is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, two Business Days after the date of
posting; or
(c) if sent by facsimile, when the sender's facsimile system
generates a message confirming successful transmission of the
total number of pages of the notice unless, within one Business
Day after the transmission, the recipient informs the sender
that it has not received the entire notice.
9.3 EXECUTION
A notice given in accordance with clause 9.1 is sufficiently signed
for or on behalf of a party if:
(a) in the case of a company, it is signed by a director,
secretary or other officer of the company; or
(b) in the case of an individual, it is signed by that party.
9.4 OTHER MODES OF SERVICE PERMITTED
The provisions of this clause 9 are in addition to any other mode of
service permitted by law.
10. GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applicable in
Victoria,
Australia and each party irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the courts of
Victoria, Australia.
11. GENERAL
11.1 DURATION OF PROVISIONS
On completion of the transactions contemplated in this agreement, the
provisions of this agreement will not merge and, to the extent any
provision has not been fulfilled, will remain in force.
11.2 FURTHER ACTION
Each party must use reasonable efforts to do all things necessary or
desirable to give full effect to this agreement.
11.3 COUNTERPARTS
This agreement may be executed in any number of counterparts.
11.4 ALTERATIONS
This agreement may be altered only in writing signed by each party.
11.5 COSTS
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Each party must bear its own costs of negotiating, preparing and
executing this agreement.
11.6 ATTORNEYS
Where this agreement is executed on behalf of a party by an attorney,
that attorney by executing declares and warrants that the attorney
has been duly appointed and has no notice of the revocation of the
power of attorney under the authority of which the attorney executes
the agreement on behalf of that party.
11.7 INTERPRETATION
In this agreement, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect
the meaning of this agreement;
(b) the singular includes the plural and vice versa and words
importing a gender include other genders;
(c) other grammatical forms of defined words or expressions have
corresponding meanings;
(d) a reference to a clause, paragraph, schedule, annexure or
attachment is a reference to a clause or paragraph of or
schedule, annexure or attachment to this agreement and a
reference to this agreement includes its schedules, annexures
and attachments;
(e) a reference to a document or agreement, including this
agreement, includes a reference to that document or agreement as
novated, altered or replaced from time to time;
(f) a reference to `A$', `$A', `dollar' or `$' is a reference to
Australian currency;
(g) a reference to a specific time for the performance of an
obligation is a reference to that time in Melbourne, Australia
even if the obligation is to be performed elsewhere;
(h) a reference to a party includes a reference to the party's
executors, administrators, successors, substitutes and
assigns;
(i) words and expressions importing natural persons include
partnerships, bodies corporate, associations, governments and
governmental and local authorities and agencies, and vice versa;
(j) a reference to any legislation or statutory instrument or
regulation is construed in accordance with the ACTS
INTERPRETATION XXX 0000 (Cth) or the equivalent State
legislation, as applicable;
(k) a reference to writing includes typewriting, printing,
lithography, photography and any other method of representing or
reproducing words, figures or symbols in a permanent and visible
form;
(l) if a day for payment under this agreement falls on a day
which is not a Business Day, payment is due on the next
Business Day;
9
(m) if a provision of this agreement binds two or more parties
(including any representation, warranty or indemnity given, made
or undertaken by two or more parties), that provision binds (and
that representation, warranty or indemnity is given, made or
undertaken by) those parties jointly and severally; and
(n) if a party comprises two or more persons, the provisions of this
agreement binding that party bind those persons jointly and
severally.
EXECUTED as an agreement.
ANTISENSE THERAPEUTICS, LIMITED ISIS PHARMACEUTICALS, INC.
By: /s/ X. Xxxxxx By: /s/ B. Xxxxx Xxxxxxxx
------------------------------- ---------------------------------
Name: X. XXXXXX Name: B. XXXXX XXXXXXXX
----------------------------- -------------------------------
Title: CEO Title: EXECUTIVE VICE PRESIDENT
---------------------------- ------------------------------
AND CHIEF FINANCIAL OFFICER
------------------------------
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SCHEDULE 1 - TERMS AND CONDITIONS OF OPTIONS
Each option ('OPTION') shall entitle the holder of the Option ('OPTION
HOLDER') to acquire by way of issue one fully paid ordinary share ('SHARE')
in Antisense Therapeutics Limited ('COMPANY') on the terms and conditions set
out below:
1. Each Option is exercisable at any time after the date of grant to a
date up to and including 30 November 2006.
2. If the Option is not exercised on or prior to the expiry of the
Option Period, the Option shall lapse.
3. The Options may be exercised wholly or in part by giving notice in
writing ('NOTICE OF EXERCISE') to the Board at any time during the
Option Period.
4. Options shall only be exercisable in multiples of 100. Within 10
business days of the exercise of the Option the Company shall apply
for the shares to be admitted for quotation on the Official List of
Australian Stock Exchange Limited.
5. The exercise price for each Option is $0.20 per share ('EXERCISE
PRICE') and is payable immediately on exercise.
6. On receipt by the Company of the Notice of Exercise and payment of
the relevant Exercise Price, the Company must, within 14 days, issue
to the Option Holder the number of Shares in respect of which the
Option is exercised and despatch the relevant share certificate or
other appropriate acknowledgment as soon as reasonably practicable
thereafter.
7. Shares issued on the exercise of any Options will rank equally in all
respects with the then existing issued ordinary fully paid shares in
the Company and will be subject to the provisions of the Constitution
of the Company.
8. An Option does not confer rights to participate in new issues of
securities of the Company, unless the Option Holder has first
exercised the Option.
9. Adjustments to the number of shares over which Options exist and/or
the Exercise Price will be made to take account of changes to the
capital structure of the Company by way of pro rata bonus and cash
issues as follows:
(a) Pro-Rata Cash issues
Where a pro-rata issue is made (except a bonus issue) to the
holders of underlying securities, the Exercise Price of an
option may be reduced according to the following formula:
O' = O - E[P-(S+D)]
----------
N + 1
where:
O' = the new exercise price of the option.
O = the old exercise price of the option.
E = the number of underlying securities into which one
option is Exercisable.
P = the average Market Price per security (weighted by
reference to volume) of the underlying securities
immediately prior to the time of determining entitlements
to participate in the issue.
11
S = the Subscription price for a security under the pro
rata issue.
D = the Dividend due but not yet paid on the existing
underlying securities (except those to be issued
under the pro rata issue).
N = the Number of securities with rights or entitlements
that must be held to receive a right to one new security.
(b) Pro-Rata Bonus Issues
If there is a bonus issue to the holders of the underlying
securities, on the exercise of any options, the number of shares
received will include the number of bonus shares that would have
been issued if the options had been exercised prior to the date
established to determine entitlements to participate in the
bonus issue. The Exercise Price will not change.
(c) For the purposes of the definition of 'P' in paragraph (a),
'Market Price' in relation to a security means the arm's length
value of the security as specified in a written report given to
the Company by a person who is registered as a company auditor
under a law in force in a State or a Territory and who is not a
director, secretary or employee of the Company.
10. In the event of any reorganisation (including consolidation,
sub-division, reduction or return) of the issued capital of the
Company, the rights of the Option Holder including the number of
options or the Exercise Price or both shall be reorganised (as
appropriate):
(a) in the event of a consolidation of the share capital of the
Company, the number of options will be consolidated in the same
ratio as the ordinary share capital of the Company and the
Exercise Price will be amended in inverse proportion to that
ratio;
(b) in the event of a subdivision of the share capital of the
Company, the number of options will be subdivided in the same
ratio as the ordinary share capital of the Company and the
Exercise Price will be amended in inverse proportion to that
ratio;
(c) in the event of a return of the share capital of the Company,
the number of options will remain the same and the Exercise
Price will be reduced by the same amount as the amount returned
in relation to each ordinary share;
(d) in the event of a reduction of the share capital of the Company
by a cancellation of paid up capital that is lost or not
represented by available assets where no securities are
cancelled the number of options and the Exercise Price of each
option will remain unaltered;
(e) in the event of a pro rata cancellation of shares in the
Company, the number of options will be reduced in the same
ratio as the ordinary share capital of the Company and the
Exercise Price of each option will be amended in inverse
proportion to that ratio; and
(f) in the event of any other reorganisation of the issued capital
of the Company, the number of options or the Exercise Price or
both will be reorganised (as appropriate) in a manner which will
not result in any benefits being conferred on Option Holders
which are not conferred on shareholders.
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11. Notices may be given by the Company to the Option Holder in the
manner prescribed by the Constitution of the Company for the giving
of notices to the Shareholders of the Company and the relevant
provisions of the Constitution of the Company will apply with all
necessary modification to notices to be given to the Option Holder.
12. The Option Holder will be sent all reports and accounts required to
be laid before Shareholders in general meeting and all notices of
general meeting of Shareholders, but he will not have any right to
attend or vote at these meetings.
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SCHEDULE 2 - RESTRICTION AGREEMENT
APPENDIX 9A
RESTRICTION AGREEMENT
Introduced 1/7/96. Origin: Appendix 11. Amended 1/7/98.
We, the persons in:
- Item 1 of the schedule ("entity");
- Item 2 of the schedule ("holder");
- Item 3 of the schedule ("controller"),
agree as follows.
INTRODUCTION
A. The entity wants to be listed and has issued restricted securities.
The holder will hold the restricted securities as set out in this
agreement on the basis that the entity will take the steps necessary
to be admitted to the +official list of ASX.
B. We have provided ASX with all the information necessary to properly
form an opinion about who is a +controller of the holder and who is
required to execute this agreement.
C. We enter this agreement for the purpose of complying with chapter 9
of the listing rules.
AGREEMENT
Escrow restrictions
1. During the escrow period, the holder will not do any of the following.
(a) +Dispose of, or agree or offer to +dispose of, the restricted
securities.
(b) Create, or agree or offer to create, any security interest in
the restricted securities.
(c) Do, or omit to do, any act if the act or omission would have the
effect of transferring effective ownership or control of the
restricted securities.
2. During the escrow period, a controller will not do any of the following.
(a) +Dispose of, or agree or offer to +dispose of, the controller
interests.
(b) Create, or agree or offer to create, any security interest in
the controller interests.
(c) Do, or omit to do, any act if the act or omission would have the
effect of transferring effective ownership or control of the
controller interests.
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3. We will comply with chapter 9 of the listing rules. If any of us is
not a listed entity, we will comply as if we were a listed entity.
Each of us will take any steps we are able to take that are necessary
to enable any of the others to comply.
4. The holder will deposit the certificates for the restricted
securities with a bank or +recognised trustee for the escrow period.
Warranties
5. If only the holder and the entity are parties to this agreement, one
of the following applies.
(a) The holder is an individual.
(b) The holder has no +controller.
(c) The holder has the +controllers set out in item 3 with the
interests identified in item 6, and each +controller comes
within an exception set out in rule 9.1.4.
The holder gives this warranty.
6. If the holder, the entity and any +controller are parties to this
agreement, the holder has the +controllers set out in item 3 with the
controller interests identified in item 6, and any +controller who is
not a party to this agreement comes within an exception set out in
rule 9.1.4. The holder and each +controller give this warranty.
7. If item 7 of the schedule is completed, the full particulars of
security interests which have been created, or are agreed or offered
to be created, in the restricted securities are set out. A release of
the security interests is attached. Apart from this, before the
escrow period begins, the holder has not done, or omitted to do, any
act which would breach clause 1 if done or omitted during the escrow
period. The holder gives this warranty.
8. If item 8 of the schedule is completed, the full particulars of
security interests which have been created, or are agreed or offered
to be created, in the controller interests are set out. A release of
the security interests is attached. Apart from this, before the
escrow period begins, the +controller has not done, or omitted to do,
any act which would breach clause 2 if done or omitted during the
escrow period. Each +controller gives this warranty.
9. A breach of any of these warranties is a breach of this agreement.
Consequences of breaching this agreement
10. If it appears to the entity that the holder or a +controller may
breach this agreement, the entity must take the steps necessary to
prevent the breach, or to enforce the agreement.
11. If the holder or a +controller breach this agreement, each of the
following applies.
(a) The entity must take the steps necessary to enforce the agreement,
or to rectify the breach.
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(b) The entity must refuse to acknowledge, deal with, accept or
register any sale, assignment, transfer or +conversion of any of
the restricted securities. This is in addition to other rights and
remedies of the entity.
(c) The holder of the restricted securities ceases to be entitled to
any dividends, distributions or voting rights while the breach
continues.
Amendment
12. This agreement will not be changed or waived without ASX's written
consent.
Jurisdiction
13. The laws of the State of the home branch of the entity apply to this
agreement. We submit to the jurisdiction of the courts of that State.
Definitions and interpretation
In this agreement:
ASX means Australian Stock Exchange Limited.
CONTROLLER INTERESTS means the +securities, substantial economic interest or
other interests in the restricted securities and each intermediate entity
through which that interest occurs, full particulars of which are set out in
item 6 of the schedule.
ESCROW PERIOD means the period set out in item 4 of the schedule.
RESTRICTED SECURITIES means the +securities set out in item 5 of the schedule
and any +securities attaching to or arising out of those +securities that are
restricted securities because of the definition of restricted securities in
the listing rules.
The singular includes the plural and vice versa.
A reference to a party includes its successors, personal representatives and
transferees.
Words and expressions defined in the listing rules of ASX, and not in this
agreement, have the meanings given to them in the listing rules.
Every warranty or agreement (expressed or implied) in which more than one
person joins, binds them individually and any combination of them as a group.
Schedule
1. Entity's name and address:
2. Holder's name and address:
3. Each +controllers' name and address:
4. Escrow period (the date from which the initial restricted securities
are escrowed):
5. Particulars of restricted securities:
16
6. Particulars of controller interests:
7. Particulars of security interests over restricted securities:
8. Particulars of security interests over controller interests:
Dated:
[Proper execution as a deed]
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